Disparate impact

This eventful week's third blockbuster Supreme Court decision mostly upheld the use of "disparate impact" arguments in housing discrimination cases, but nevertheless prohibited the quota system.

The case arose out of accusations that Texas officials had violated the Fair Housing Act by awarding federal tax credits in a way that kept low-income housing out of white neighborhoods. The Fair Housing Act bans discrimination “because of race”; Kennedy concluded that it therefore “may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping,” absent a showing of deliberate racial discrimination. The ruling is consistent with the Court's previous interpretations of two other antidiscrimination statutes, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.

A new and important restriction on the use of disparate impact, however, is that the plaintiff must show a causal relationship between the defendant's action and the resulting statistical anomaly; the bare anomaly is insufficient. If the causal link is there, the plaintiff need not show proof of state of mind:
A disparate-impact claim relying on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement is important in ensuring that defendants do not resort to the use of racial quotas.... Policies, whether governmental or private, are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers.”... Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice, and courts should strive to design race-neutral remedies. Remedial orders that impose racial targets or quotas might raise difficult constitutional questions.
This approach is just about exactly the basis of Edith Jones's decision below in the Fifth Circuit, so yay, Edith, as usual.

Justice Alito mischievously pointed out that minimum-wage laws could rightfully be accused of disparate impact.


Assistant Village Idiot said...

Reality has disparate impact. I suppose legislating to reverse that, even though unfair, should reduce rioting.

Texan99 said...

This is how I view disparate impact, and I'd be happier if we got it out of the law completely. But I can't quite shake the idea that sometimes all you can show is a pattern that strongly suggests intent, even if it's nearly impossible to get direct evidence of intent. To take it out of the racial-discrimination context, we often infer intent from patterns of action in cases like destruction of evidence or willful neglect. It's not often we catch someone admitting intent in writing, though of course that's always handy. Sometimes we have to say, "Oh, really? You just happened to destroy exactly the smoking guns, as you supposedly were only carrying out a neutral documentation-retention program?"

It works better, surely, when the pattern we're examining is expressed in the actions of the defendant, and not just the results in the lives of the plaintiffs. In the racial-discrimination context, to talk about patterns in the lives of the plaintiffs not only exposes the defendants to prosecution for results inextricably bound up in the behavior of the plaintiffs themselves, but marches us straight into the quagmire in which reality requires examining the plaintiffs' responsibility for their own lives while PC orthodoxy makes any such approach a lightning rod.

That's why I like the "causation" requirement. It forces the plaintiffs to stop focusing solely on their own life experience and think through what they suppose the defendants are doing wrong. Not "something's wrong; you should pay to fix it" but "you've done something I claim is wrong, and I'm prepared to explain why."

raven said...

Apparently HUD has a plan to identify communities that are not sufficiently diverse, using census data, and diversify them using low income housing etc. I wonder if this scotus ruling is a per-emptive strike in support of that goal.

Texan99 said...

I worry about the HUD plan, too, but I think it's relatively distinct from this one. The HUD plan has to do with what hoops local governments will have to jump through in order to keep getting piles of federal public housing money. The Texas lawsuit just decided by the Supreme Court had to do with whether any aggrieved party could sue a private party over alleged discrimination, even in the absence of intent to discriminate, by establishing a disparate impact.